Stock Option Agreement - Excite Inc. and At Home Corp.

STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT dated as of January 19, 1999 (the
'AGREEMENT') is entered into by and between Excite, Inc., a Delaware corporation
(the 'COMPANY') and At Home Corporation, a Delaware corporation ('PARENT').
Capitalized terms used in this Agreement but not defined herein shall have the
meanings ascribed thereto in the Merger Agreement (as defined below).
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Company, Parent and Countdown Merger Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ('SUB'), are entering into an Agreement and Plan of
Reorganization (the 'MERGER AGREEMENT'), which provides that, among other
things, upon the terms and subject to the conditions thereof, the Company and
Parent will enter into a business combination transaction (the 'MERGER').
B. As a condition to Parent's willingness to enter into the Merger
Agreement, Parent has requested that the Company agree, and the Company has so
agreed, to grant to Parent an option to acquire shares of the Company's Common
Stock, $0.001 par value (including the associated rights (the 'RIGHTS') to
purchase shares of the Company's Preferred Stock pursuant to the Rights
Agreement, dated as of October 15, 1998, between the Company and BankBoston,
N.A., as Rights Agent (the 'RIGHTS AGREEMENT')) (together, 'COMPANY SHARES'),
upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF OPTION
The Company hereby grants to Parent an irrevocable option (the
'OPTION') to acquire up to a number of Company Shares equal to 19.9% of the
issued and outstanding shares of common stock of the Company as of the first
date, if any, upon which an Exercise Event (as defined in Section 2(a) below)
shall occur (the 'OPTION SHARES'), in the manner set forth below by paying cash
at a price of $106.60 per share (the 'EXERCISE PRICE'). All references in this
Agreement to Company Shares issued to Parent hereunder shall be deemed to
include the associated Rights (subject to the terms of the Rights Agreement).
2. EXERCISE OF OPTION; MAXIMUM PROCEEDS
(a) For all purposes of this Agreement, an 'EXERCISE EVENT'
shall mean the occurrence of any of (i) a Company Triggering Event (as such term
is defined in the Merger Agreement), (ii) the public announcement of an Option
Acquisition Proposal (as defined below) or (iii) the commencement of a
solicitation within the meaning of Rule 14a-1(l) by any person or entity other
than the Company or its Board of Directors (or any person or entity acting on
behalf of the Company or its Board of Directors) seeking to alter the
composition of the Company's Board of Directors. For purposes of this Agreement,
'OPTION ACQUISITION PROPOSAL' shall mean any offer or proposal (other than an
offer or proposal by Parent) relating to any transaction or series of related
transactions involving: (A) any purchase from the Company or acquisition by any
person or 'group' (as defined under Section 13(d) of the Exchange Act and the
rules and regulations thereunder) of more than a 10% interest in the total
outstanding voting securities of the Company or any of its subsidiaries or any
tender offer or exchange offer that if consummated would result in any person or
'group' (as defined under Section 13(d) of the Exchange Act and the rules and
regulations thereunder) beneficially owning 10% or more of the total outstanding
voting securities of the Company or any of its subsidiaries or any merger,
consolidation, business combination or similar transaction involving the
Company; (B) any sale, lease (other than in the ordinary course of business),
exchange, transfer, license (other than in the ordinary course of business),
acquisition or disposition of more than 10% of the assets of the Company; or (C)
any liquidation or dissolution of the Company.
(b) Parent may deliver to the Company a written notice (an
'EXERCISE NOTICE') specifying that it wishes to exercise and close a purchase of
Option Shares at any time following the occurrence of an Exercise Event and
specifying the total number of Option Shares it wishes to acquire. Unless such
Exercise Notice is withdrawn by Parent, the closing of a purchase of Option
Shares (a 'CLOSING') specified in such Exercise Notice shall take place at the
principal offices of the Company upon such date prior to the termination of the
Option as may be designated by Parent in writing.
(c) The Option shall terminate upon the earliest to occur of
(i) the Effective Time (as such term is defined in the Merger Agreement), (ii)
termination of the Merger Agreement pursuant to any of Section 7.1(a), 7.1(c),
7.1(d) or 7.1(g) thereof, (iii) termination of the Merger Agreement pursuant to
either of Section 7.1(b) or 7.1(e) thereof if prior thereto no Exercise Event
shall have occurred, or (ii) 18 months following the termination of the Merger
Agreement under any other circumstances; provided, however, that if the Option
is exercisable but cannot be exercised by reason of any applicable government
order or because the waiting period related to the issuance of the Option Shares
under the HSR Act (as such term is defined in the Merger Agreement) shall not
have expired or been terminated, or because any other condition to closing has
not been satisfied, then the Option shall not terminate until the tenth business
day after such impediment to exercise shall have been removed or shall have
become final and not subject to appeal.
(d) If Parent receives proceeds in connection with any sales
or other dispositions of Option Shares or this Option (including by selling
Option Shares to the Company pursuant to
Section 6(a) hereof), plus any dividends (or equivalent distributions under
Section 7(a) hereof) received by Parent declared on Option Shares, of more than
the sum of (x) $35 million plus (y) the Exercise Price multiplied by the number
of Company Shares purchased by Parent pursuant to the Option, then all proceeds
to Parent in excess of such sum shall be promptly remitted in cash by Parent to
the Company.
3. CONDITIONS TO CLOSING
The obligation of the Company to issue Option Shares to Parent
hereunder is subject to the conditions that (a) any waiting period under the HSR
Act applicable to the issuance of the Option Shares hereunder shall have expired
or been terminated; (b) all material consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Option Shares hereunder shall have been obtained or
made, as the case may be; and (c) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance shall be in effect. It is understood and agreed that
at any time during which Parent shall be entitled to deliver to the Company an
Exercise Notice, the parties will use their respective reasonable efforts to
satisfy all conditions to Closing, so that a Closing may take place as promptly
as practicable.
4. CLOSING
At any Closing, (a) the Company shall deliver to Parent a single
certificate in definitive form representing the number of Company Shares
designated by Parent in its Exercise Notice consistent with this Agreement, such
certificate to be registered in the name of Parent and to bear the legend set
forth in Section 9 hereof, against delivery of (b) payment by Parent to the
Company of the aggregate purchase price for the Company Shares so designated and
being purchased by delivery of a certified check or bank check in immediately
available funds.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent that (a) the Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by the Company and consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or any of
the transactions contemplated hereby; (c) this Agreement has been duly executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company and, assuming this Agreement constitutes a legal,
valid and binding obligation of Parent, is enforceable against the Company in
accordance with its terms, except as enforceability may be limited by principles
of public policy, bankruptcy and by rules of
law governing specific performance, injunctive relief and other equitable
remedies; (d) except for any filings, authorizations, approvals or orders
required under the HSR Act and the filing of a notice on Form 25102(f) pursuant
to the California Corporate Securities Rules and Regulations, the Company has
taken all necessary corporate and other action to authorize and reserve for
issuance and to permit it to issue upon exercise of the Option, and at all times
from the date hereof until the termination of the Option will have reserved for
issuance, a sufficient number of unissued Company Shares for Parent to exercise
the Option in full and will take all necessary corporate or other action to
authorize and reserve for issuance all additional Company Shares or other
securities which may be issuable pursuant to Section 7(a) upon exercise of the
Option, all of which, upon their issuance and delivery in accordance with the
terms of this Agreement and payment therefor by Parent, will be validly issued,
fully paid and nonassessable; (e) upon delivery of the Company Shares and any
other securities to Parent upon exercise of the Option, Parent will acquire such
Company Shares or other securities free and clear of all material claims, liens,
charges, encumbrances and security interests of any kind or nature whatsoever,
excluding those imposed by Parent; (f) the execution and delivery of this
Agreement by the Company do not, and the performance of this Agreement by the
Company will not, (i) violate the Certificate of Incorporation or Bylaws of the
Company, (ii) conflict with or violate any order applicable to the Company or
any of its subsidiaries or by which they or any of their material property is
bound or affected or (iii) result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a material lien or encumbrance on
any material property or assets of the Company or any of its subsidiaries
pursuant to, any material contract or agreement to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their material property is bound or affected; and (g) the execution
and delivery of this Agreement by the Company does not, and the performance of
this Agreement by the Company will not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any Governmental
Entity (as such term is defined in the Merger Agreement) except pursuant to the
HSR Act.
6. REGISTRATION RIGHTS
(a) Following the termination of the Merger Agreement, Parent
(sometimes referred to herein as the 'HOLDER') may by written notice (sometimes
referred to herein as the 'REGISTRATION NOTICE') to the Company (the
'REGISTRANT') request the Registrant to register under the Securities Act all or
any part of the shares acquired by the Holder pursuant to this Agreement (such
shares requested to be registered the 'REGISTRABLE SECURITIES') in order to
permit the sale or other disposition of such shares pursuant to a bona fide firm
commitment underwritten public offering in which the Holder and the underwriters
shall effect as wide a distribution of such Registrable Securities as is
reasonably practicable and shall use reasonable efforts to prevent any person or
group from purchasing through such offering shares representing more than 1% of
the outstanding shares of Common Stock of the Registrant on a fully diluted
basis (a 'PERMITTED OFFERING'); provided, however, that any such Registration
Notice must relate to a number of shares equal to at least 2% of the outstanding
shares of Common Stock of the Registrant on a fully diluted basis and that any
rights to require registration hereunder shall terminate with respect to any
shares
that may be sold pursuant to Rule 144(k) under the Securities Act or at such
time as all of the Registrable Securities may be sold in any three month period
pursuant to Rule 144 under the Securities Act. The Registration Notice shall
include a certificate executed by the Holder and its proposed managing
underwriter, which underwriter shall be an investment banking firm of
internationally recognized standing reasonably acceptable to the Company (the
'MANAGER'), stating that (i) the Holder and the Manager have a good faith
intention to commence a Permitted Offering and (ii) the Manager in good faith
believes that, based on the then prevailing market conditions, it will be able
to sell the Registrable Securities at a per share price equal to at least 80% of
the per share average of the closing sale prices of the Registrant's Common
Stock on the Nasdaq National Market for the twenty trading days immediately
preceding the date of the Registration Notice. The Registrant shall thereupon
have the option exercisable by written notice delivered to the Holder within
five business days after the receipt of the Registration Notice, irrevocably to
agree to purchase all (but not less than all) of the Registrable Securities for
cash at a price (the 'OPTION PRICE') equal to the product of (i) the number of
Registrable Securities so purchased and (ii) the per share average of the
closing sale prices of the Registrant's Common Stock on the Nasdaq National
Market for the twenty trading days immediately preceding the date of the
Registration Notice. Any such purchase of Registrable Securities by the
Registrant hereunder shall take place at a closing to be held at the principal
executive offices of the Registrant or its counsel at any reasonable date and
time designated by the Registrant in such notice within 10 business days after
delivery of such notice. The payment for the shares to be purchased shall be
made by delivery at the time of such closing of the Option Price in immediately
available funds.
(b) If the Registrant does not elect to exercise its option to
purchase pursuant to Section 6(a) with respect to all Registrable Securities,
the Registrant shall use all reasonable efforts to effect, as promptly as
practicable, the registration under the Securities Act of the Registrable
Securities requested to be registered in the Registration Notice; provided,
however, that (i) the Holder shall not be entitled to more than an aggregate of
two effective registration statements hereunder, provided however, that if the
Registrant withdraws a filed registration statement at the request of the Holder
(other than as the result of a material change in the Registrant's business or
the Holder's learning of new material information concerning the Registrant),
then such filing shall be deemed to have been an effective registration for
purposes of this clause (i), (ii) the Registrant will not be required to file
any such registration statement during any period of time (not to exceed 45 days
after a Registration Notice in the case of clause (A) below or 90 days after a
Registration Notice in the case of clauses (B) and (C) below) when (A) the
Registrant is in possession of material non-public information which it
reasonably believes would be detrimental to be disclosed at such time and such
information would have to be disclosed if a registration statement were filed at
that time; (B) the Registrant is required under the Securities Act to include
audited financial statements for any period in such registration statement and
such financial statements are not yet available for inclusion in such
registration statement; or (C) the Registrant determines, in its reasonable
judgment, that such registration would interfere with any financing, acquisition
or other material transaction involving the Registrant and (iii) the Registrant
will not be required to maintain the effectiveness of any such registration
statement for a period greater than 60 days. If consummation of the sale of any
Registrable Securities pursuant to a registration hereunder does not occur
within 180 days after the
filing with the SEC of the initial registration statement therefor, the
provisions of this Section 6 shall again be applicable to any proposed
registration. The Registrant shall use all reasonable efforts to cause any
Registrable Securities registered pursuant to this Section 6 to be qualified for
sale under the securities or blue sky laws of such jurisdictions as the Holder
may reasonably request and shall continue such registration or qualification in
effect in such jurisdictions until the Holder has sold or otherwise disposed of
all of the securities subject to the registration statement; provided, however,
that the Registrant shall not be required to qualify to do business in, or
consent to general service of process in, any jurisdiction by reason of this
provision.
(c) The registration rights set forth in this Section 6 are
subject to the condition that the Holder shall provide the Registrant with such
information with respect to the Holder's Registrable Securities, the plan for
distribution thereof, and such other information with respect to the Holder as,
in the reasonable judgment of counsel for the Registrant, is necessary to enable
the Registrant to include in a registration statement all material facts
required to be disclosed with respect to a registration thereunder, including
the identity of the Holder and the Holder's plan of distribution.
(d) A registration effected under this Section 6 shall be
effected at the Registrant's expense, except for underwriting discounts and
commissions and the fees and expenses of counsel to the Holder, and the
Registrant shall use all reasonable efforts to provide to the underwriters such
documentation (including certificates, opinions of counsel and 'comfort' letters
from auditors) as are customary in connection with underwritten public offerings
and as such underwriters may reasonably require. In connection with any
registration, the Holder and the Registrant agree to enter into an underwriting
agreement reasonably acceptable to each such party, in form and substance
customary for transactions of this type with the underwriters participating in
such offering.
(e) Indemnification
(i) The Registrant will indemnify the Holder, each of
its directors and officers and each person who controls the Holder within the
meaning of Section 15 of the Securities Act, and each underwriter of the
Registrant's securities, with respect to any registration, qualification or
compliance which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Registrant of any rule or regulation
promulgated under the Securities Act applicable to the Registrant in connection
with any such registration, qualification or compliance, and the Registrant will
reimburse the Holder and, each of its directors and officers and each person who
controls the Holder within the meaning of Section 15 of the Securities Act,
and each underwriter for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Registrant will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Registrant by the Holder or director or
officer or controlling person or underwriter seeking indemnification, provided,
however, that the indemnity agreement contained in this subsection 6(e)(i) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Registrant, which consent shall not be unreasonably withheld.
(ii) The Holder will indemnify the Registrant, each
of its directors and officers and each underwriter of the Registrant's
securities covered by such registration statement and each person who controls
the Registrant within the meaning of Section 15 of the Securities Act, against
all claims, losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Holder of any rule or regulation promulgated under the Securities Act
applicable to the Holder in connection with any such registration, qualification
or compliance, and will reimburse the Registrant, such directors, officers or
control persons or underwriters for any legal or any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Registrant by the Holder
expressly for use therein, provided that in no event shall any indemnity under
this Section 6(e) exceed the gross proceeds of the offering received by the
Holder and provided further that the indemnity agreement contained in this
subsection 6(e)(ii) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld.
(iii) Each party entitled to indemnification under
this Section 6(e) (the 'INDEMNIFIED PARTY') shall give notice to the party
required to provide indemnification (the 'INDEMNIFYING PARTY') promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of the Indemnified Party by
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 6(e) unless
the failure to give such notice is materially prejudicial to an Indemnifying
Party's ability to defend such action. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. No Indemnifying Party shall be required to
indemnify any Indemnified Party with respect to any settlement entered into
without such Indemnifying Party's prior consent (which shall not be unreasonably
withheld).
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION; RIGHTS PLANS
(a) In the event of any change in the Company Shares by reason
of stock dividends, stock splits, reverse stock splits, mergers (other than the
Merger), recapitalizations, combinations, exchanges of shares and the like, the
type and number of shares or securities subject to the Option and the Exercise
Price shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction so that Parent shall receive, upon
exercise of the Option, the number and class of shares or other securities or
property that Parent would have received in respect of the Company Shares if the
Option had been exercised immediately prior to such event or the record date
therefor, as applicable.
(b) Prior to such time as the Option is terminated, and at any
time after the Option is exercised (in whole or in part, if at all), the Company
shall not amend (nor permit the amendment of) its Rights Agreement nor adopt
(nor permit the adoption of) a new stockholders rights plan that contains
provisions for the distribution or exercise of rights thereunder as a result of
Parent or any affiliate or transferee being the beneficial owner of shares of
the Company by virtue of the Option being exercisable or having been exercised
(or as a result of beneficially owning shares issuable in respect of any Option
Shares).
8. RESTRICTIVE LEGENDS
Each certificate representing Option Shares issued to Parent hereunder
shall include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR
SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT DATED
AS OF JANUARY 19, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
ISSUER.
9. LISTING AND HSR FILING
The Company, upon the request of Parent, shall promptly file an
application to list the Company Shares to be acquired upon exercise of the
Option for quotation on the Nasdaq National Market and shall use its reasonable
efforts to obtain approval of such listing as soon as practicable. Promptly
after the date hereof, each of the parties hereto shall promptly file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice all required premerger notification and report forms and
other documents and exhibits required to be filed under the HSR Act to permit
the acquisition of the Company Shares subject to the Option at the earliest
possible date.
10. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
person other than the parties hereto and their respective successors and
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Agreement. Certificates representing shares sold in a registered public
offering pursuant to Section 6 shall not be required to bear the legend set
forth in Section 8.
11. SPECIFIC PERFORMANCE
The parties recognize and agree that if for any reason any of the
provisions of this Agreement are not performed in accordance with their specific
terms or are otherwise breached, immediate and irreparable harm or injury would
be caused for which money damages would not be an adequate remedy. Accordingly,
each party agrees that in addition to other remedies the other party shall be
entitled to an injunction restraining any violation or threatened violation of
the provisions of this Agreement. In the event that any action shall be brought
in equity to enforce the provisions of the Agreement, neither party will allege,
and each party hereby waives the defense, that there is an adequate remedy at
law.
12. ENTIRE AGREEMENT
This Agreement and the Merger Agreement (including the appendices and
exhibits thereto) constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
13. FURTHER ASSURANCES
Each party will execute and deliver all such further documents and
instruments and take all such further action as may be necessary in order to
consummate the transactions contemplated hereby.
14. VALIDITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of the other provisions of this
Agreement, which shall remain in full force and effect. In the event any
Governmental Entity of competent jurisdiction holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith and shall execute and deliver an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision.
15. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial delivery service,
or sent via telecopy (receipt confirmed) to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy numbers for
a party as shall be specified by like notice):
(a) if to the Company, to:
Excite, Inc.
555 Broadway
Redwood City, California 94063
Telephone: (650) 568-6000
Facsimile: (650) 568-6030
Attn: President and Executive Officer
with a copy to:
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
Telephone: (650) 494-0600
Facsimile: (650) 494-1417
Attn: Mark C. Stevens
Douglas N. Cogen
(b) if to Parent, to:
At Home Corporation
425 Broadway Street
Redwood City, California 94063
Telephone: (650) 569-5000
Facsimile: (650) 596-5100
Attn: President and Executive Officer
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
Attn: Larry W. Sonsini
Martin W. Korman
Todd Cleary
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed entirely within such State.
17. COUNTERPARTS
This Agreement may be executed in two counterparts, each of which shall
be deemed to be an original, but both of which, taken together, shall constitute
one and the same instrument.
18. EXPENSES
Except as otherwise expressly provided herein or in the Merger
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
19. AMENDMENTS; WAIVER
This Agreement may be amended by the parties hereto and the terms and
conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
20. ASSIGNMENT
The Company may not sell, transfer, assign or otherwise dispose of any
of its rights or obligations under this Agreement or the Option created
hereunder to any other person, without the express written consent of Parent.
The rights and obligations hereunder shall inure to the benefit of
and be binding upon any successor of a party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
EXCITE, INC.
By: /s/ GEORGE BELL
------------------------------------
Name: George Bell
Title: Chief Executive Officer
AT HOME CORPORATION
By: /s/ THOMAS A. JERMOLUK
------------------------------------
Name: Thomas A. Jermoluk
Title: Chief Executive Officer
***STOCK OPTION AGREEMENT***
***STOCK OPTION AGREEMENT***